Guest Blogger Alastair Lawrie - Religious Exceptions: An Explainer

Religious exceptions have been in the news a bit lately. From discussions around whether civil celebrants and other wedding-related businesses should be able to refuse service to same-sex couples during the marriage equality debate late last year. To reports about the current Ruddock Religious Freedom Review, which is examining how religious freedom should be protected under Australian law.

But what exactly are ‘religious exceptions’? And how can they affect you?

In short, religious exceptions are special privileges given to religious organisations that allow them to engage in conduct that would otherwise be prohibited by Commonwealth, state and territory anti-discrimination laws.

These loopholes allow such organisations to deny services to, fire or refuse to hire lesbian, gay, bisexual and transgender people (although it’s not just the LGBT community who are the targets, with discrimination also permitted on the basis of sex, marital or relationship status and some other attributes).

In NSW, the primary religious exceptions are found in section 56 of the Anti-Discrimination Act 1977, which provides that:

Nothing in this Act affects:

(a) the ordination or appointment of priests, ministers or religion or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

These provisions, and especially sub-section (d), are incredibly broad, and allow discrimination in an extremely wide range of circumstances.

This includes permitting foster care agencies operated by religious organisations to refuse applications by same-sex couples. This was confirmed in one of the most high-profile LGBT anti-discrimination cases in NSW in recent decades, where a decision by Wesley Mission to deny adoption to a male same-sex couple in 2002 was appealed all the way to the Court of Appeal and back to the Anti-Discrimination Tribunal in December 2010 which ultimately decided against the two men.

Foster care agencies are not the only type of organisation dealing with rainbow families (including prospective rainbow families) who are allowed to discriminate against lesbian, gay and trans people in NSW (noting that bisexual people are still not covered by the Anti-Discrimination Act at all).

Section 59A(1) provides that ‘Nothing in Part 3A or 4C affects any policy or practice of a faith-based organisation concerning the provision of adoption services under the Adoption Act 2000 or anything done to give effect to any such policy or practice.’

Believe it or not, however, that’s not even the worst section of NSW’s anti-discrimination laws. That (dis)honour goes to provisions which allow ‘private educational authorities’ to discriminate against lesbian, gay and trans students (sections 49ZO(3) and 38K(3)), including students who are the children of rainbow families, as well as against lesbian, gay and trans teachers and other staff (sections 49ZH(3)(c) and 38C(3)(c)).

Unlike other jurisdictions, this ability to exclude and expel is not restricted to religious schools, but in fact applies to all non-government schools and colleges.

Speaking of other jurisdictions, LGBTI people in NSW are also protected by the Commonwealth Sex Discrimination Act 1984, which at least includes bisexual people, and also prohibits discrimination on the basis of intersex status.

Unfortunately, that legislation also contains religious exceptions, which are almost as broad as those found in the NSW Act, permitting discrimination by religious schools (although not other private, non-religious educational institutions) in section 38, as well as a general religious exception in section 37(1)(d):

Nothing in Division 1 or 2 affects:

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

On the positive side, the Sex Discrimination Act specifically removes the ability of Commonwealth-funded aged care services operated by religious organisations to discriminate against LGBT people accessing those services. That ‘carve-out’ has operated successfully since August 2013, and shows that religious organisations don’t actually need special privileges allowing them to discriminate against us.

In fact, in practice many religious organisations can and do treat all people equally, irrespective of their sexual orientation or gender identity. But the problem is any religious organisation can discriminate against LGBT people, and rainbow families, at any time, and in most circumstances do so entirely lawfully.

Perhaps the final indignity is that they would be doing so with your money – nearly all religious organisations operating in health, education and community services are in receipt of Commonwealth, state or territory funding, meaning their prejudice is paid for out of the pockets of LGBTI taxpayers.

That’s why, rather than looking at expanding religious freedom in Australia, the Ruddock Religious Freedom Review should be considering how to better protect LGBT people from religious discrimination. And what better place to start than by winding back religious exceptions in Commonwealth and NSW anti-discrimination laws.

Alastair Lawrie is a long-time advocate for LGBTI rights, with a particular focus on LGBTI anti-discrimination laws. He has previously been Policy Working Group Chair of both the Victorian and NSW Gay & Lesbian Rights Lobbies and currently writes at www.alastairlawrie.net